We often get asked “where can I use a hovercraft?” by potential buyers. The answer is simple enough and very few of our owners have any issues using their hovercraft. Drive sensibly, with due respect to other water users and public, follow our code of practice, understand what you can and can’t do, where you can and can’t operate your hovercraft - and you should be safe in the knowledge you are breaking no laws.

What we’re looking at here is what your rights are when you occasionally run into an over-officious warden or harbour master who will cite a bye-law or rule which means you should not be operating on ‘his’ patch. To avoid an argument, or being ‘bullied’ it’s wise to be ready with the facts.

Now – we’re not lawyers, let’s be clear about that. But the basis in law of our answer ‘anywhere you can use a boat’ can be simply broken down into a couple of points.

In the UK, we have a Public Right of Navigation (PRN) using a vessel in tidal water.

The ongoing battle between (primarily) kayakers and fishermen with rights to fish non-tidal rivers is a separate matter altogether (even though it’s proven that the kayaks don’t disturb the fish, but that’s another matter…) But, the PRN in tidal waters an uncontested right. For sure, no cases have been found which disputed the existence of a public right of navigation on tidal waters.

However, there are one or two places around the country where hovercraft have been ‘banned’ using a local bye-law. We strongly contend that this is not legal because the law of England is that public rights can only be extinguished in three ways.

Statute (ie an act of parliament.)

Statutory Authority,

Conditions changing so that the right cannot be exercised,

In 2002, Mr Justice Lightman said “PRN may only be extinguished by legislation or exercise of statutory powers” (Josie Rowland v Environment Agency – 2002.)

A byelaw is NOT a statutory law – therefore it cannot be used to remove a PRN.

For rivers, the normal reason that the right cannot be exercised is that the river has silted up and is no longer passable by conventional boats - but public rights are not extinguished by non-use for any period of time. This means that even if a boat hasn’t used / cannot use a tidal river, the right still exists. Lord Lindley in the House of Lords who said “the doctrine ‘once a highway always a highway’ is, I believe, as applicable to rivers as to roads.”

The foreshore is the area between the high water mark and the low water mark. When the tide is in there is an absolute right to navigate through the water (although not necessarily a right to land a boat or launch one) and so it is not possible to fence off foreshore areas, as this would limit navigation. All foreshore belongs to the Crown unless it has in the past been sold or given away. This has occurred in a few places and there are often bylaws prohibiting bait digging on or near the foreshore, which is probably the most common reason for people to use such areas. In any case such activity is usually prohibited by law in protected areas. However, this activity is clearly a separate matter to the PRN which exists.

The Crown Estate gives what it calls a ‘general permissive consent’ for ‘non-commercial public access’ along the foreshore it controls. Approximately half of the UK foreshore and around half of the tidal riverbeds are owned by the Crown and managed by The Crown Estate, in addition to virtually the entire UK seabed out to 12 nautical miles. The Crown Estate is a landowner and not a regulatory authority and ostensibly the owner of the foreshore by virtue of prerogative right. The same applies to the seabed, being land below mean low water. This, in effect, means that the Crown owns all of it unless it has in the past given it away or sold it.

Other owners of foreshore include, for example, the Duchies of Cornwall and Lancaster, Local Authorities, RSPB, National Trust, MOD and some is in the ownership of private individuals. Beaches are owned, although almost all beaches allow public access, often because of the practical impossibility of preventing it. Ownership does not necessarily revoke the PRN. The judge in the 1864 case of Gann vs Free Fishers of Whitstable said that “The foreshore is owned by the Crown except in those places where the ownership has passed to an individual by grant or adverse possession. Where this has happened the grantee takes it, in general, subject to the public right of navigation.”

While we’re on that, it’s worth mentioning that the judge also ruled that ‘constructed’ pits where the owner has dug out an area which fills with tidal water are legally designated as privately owned. He mentioned gravel pits, but bringing that forward to today, inland waterways constructed to give ‘river’ frontage and inland marinas which are controlled by tidal/sluice gates etc – for instance the Sovereign Marina, Eastbourne (look it up on Google Earth) - may well not have a PRN.

Low water, and travelling over mudflats.

There’s lots of court cases which firmly set the precedent that you have a PRN even when the tide is low and you are navigating over foreshore or seabed – some of which I’ll quote here. Lord Widgery : ‘The public right of navigation in tidal waters is a right given by the common law which extends to the whole space over which the tide flows and is not suspended when the tide is too low for vessels to float.’

This was supported by Sir James Hannen, ‘The rights of all vessels are not co-extensive. It may be reasonable and right that a small vessel should go up to the farthest point she can reach in order to give the public the benefit of the public way.’

Lord Denning, ‘There are many cases where people with canoes have a right to take their canoes up and down a river. They certainly have such a right in tidal waters. The right of soil in arms of the sea and public rivers must in all cases be considered as subject to the public right of navigation”

More recently Park J said, ‘There is a right to navigation over all tidal waters, even where at certain states of the tide the water may disappear from the particular place where the navigation is taking place.’

Interestingly, in 1990, Brotherton Vinelott J held that on a section of the river Derwent which was probably tidal there was no public right of navigation. This part of his judgement was effectively reversed by the parties to the action who, when the case came to the Appeal Court, stated that it was agreed by the parties that there was a right of navigation from Sutton to Stamford Bridge. No reasons were recorded. This would seem to mean that the decision of Vinelott J on this matter is void of any authority. As stated previously, no cases have been found which disputed the existence of a public right of navigation on tidal waters.

In Conclusion.

Hovercraft frustrate authorities due to their ability to operate at low water, over mudflats and to access areas they hadn’t ever considered would be available to recreational ‘boaters.’ That’s not our fault - or problem. We’re boats remember. We have a right which we exercise in accordance with the law and if they prevent such, they are potentially committing a criminal act. Back to what I said at the beginning of this article - behave responsibly, in accordance with the code of practice and I honestly cannot imagine any authority would wish to challenge such operation in court. However, this is our advice only – we’re not lawyers and this case has never been tried. To be fair, it’s never come even remotely close to that in 35 years of hovercrafting!

Stand firm!

You have a right of navigation on tidal water.

A bye-law is not a statutory law and cannot, therefore, remove that right.

It is uncontested that the right includes use of a vessel.

Hovercraft are legally categorised as vessels.

The PRN extends to the foreshore and seabed.

Other Matters

There’s two other issues that you need to consider. A harbour master can control access and behaviour within his area of authority. Nothing here is meant to suggest otherwise and you should and must act in accordance with local bye-laws. So, it may be that you need to observe speed limits or request permission to pass through the harbour to avoid conflict with (for instance) commercial traffic or lifeboat operations. Council’s may decide to restrict your ability to launch from their slipways. However, you have an ancillary right to exercise your PRN, and if they control the access and prevent you from launching, they are likely committing a criminal offence in doing so.

The other issue is your legal right to operate in protected areas such as RAMSAR sites, SSSI’s (and a million acronyms!) which are mostly administered by Natural England, and organisation with a huge history of Ultra Vires behaviour. We’ll look into that in a future article.

If, as a hovercraft operator, you do run into any issues where your PRN is challenged, do please let us know.

Over in America, specifically Alaska, a chap by the name of John Sturgeon is currently in the Supreme Court standing up for his right to use a small hovercraft to hunt moose in a national park. Back in 2007, John’s noisy old-fashioned and unreliable 1991 ‘Scat’ hovercraft broke down on his way to a moose hunting expedition. He was accosted by park rangers who told him he could not use his hovercraft in the national park and eventually had to remove it on a boat as, even when mended the Park Rangers would not allow him to drive the hovercraft out again! They were, according to John “real jerks!” But, it turned out they'd picked on the wrong man! To cut a long story short John has taken his case all the way to the Supreme Court. Now, whilst not pretending to understand American law it appears that John's case centres around federal law attempting to overrule state law and his right to navigate on rivers in national parks.

I'm watching this case with considerable interest and it would appear it has far-reaching consequences for hovercraft use in America. Here in the UK, over the years, there's been a few odd occasions where overzealous wardens have tried to prevent hovercraft owners exercising their right of navigation on tidal waters. This is usually done by stating that hovercraft cannot be used in the many environmentally protected areas around the coastline of the UK. In fact, pretty much every inch of UK coastline now has some type of environmental protection. Choose from SSSI, RAMSAR, SPA, AONB, LNR,NNR,MNR… To name but a few! The situation is confused further by the inevitable fact that there are protected areas designated by the EU present in the UK as well!

Of course protecting the environment is extremely important and in my experience the type of people who operate small hovercraft for recreational and pleasure purposes are not the type of people who set out to cause problems act irresponsibly or cause distress to animals, plants or Park Rangers. Occasionally however, you meet the type of warden who would prevent anybody from doing anything within "his area" and goes well beyond his given powers in trying to prevent anything he may perceive as threatening unwelcome or illegal. The most commonly cited reason for an objection to a hovercraft is that it may disturb birds feeding on the waterline. This is easily countered by observing an ‘offset’ of 100 m, something which we advise all our owners to do. But you can no more blame a hovercraft for scaring birds then you can blame a car for exceeding 70 miles an hour. Like all these things common sense needs to be applied on both sides.

Just to re-cap, hovercraft do not poison the water with exhaust fumes like boats do. They have no propeller water which means animal strikes are impossible and there is no underwater disturbance to damage the seabed or plant life. At anything over 8 knots, there is no wash meaning riverbanks are not washed away. They use a fraction of the amount of fuel of an equivalent sized boat which must be a good thing for both the owner and the environment! There’s no powered marine vessel which is more environmentally sound. Why then do they get such a bad rap? I believe it is because some hovercraft were/are noisy and this is a very obvious downside compared to the discrete poisoning of the water which boats are guilty of. Our own craft have slow fans, good exhausts, low powered engines and clever engineering which keeps noise down to very acceptable levels but to some their preconceptions will not be overcome.

Confronted by an intransigent council, warden or Harbour Master is there any defence? Well yes! Fortunately, getting on for 1000 years ago, King John signed the Magna Carta. This granted us all a right of navigation on tidal waters around the UK which persists today. You cannot use a bylaw to remove a common law right which brings us neatly onto Langstone Harbour which has a bylaw preventing the operation of hydrofoils, jet skis, skiing, seaplanes and hovercraft amongst other things. I often wonder if I should visit Langstone Harbour by hovercraft observing the speed limit and sticking to the Channel to see what would happen, as the Harbour Master has certainly prevented operation of hovercraft previously. This would make for a very interesting test case with the same far-reaching consequences that John Sturgeon’s case in the US may have across the pond. Whilst advocating responsible operation of hovercraft, and being somebody who would much rather avoid feeding the lawyers, in this case it is clear the Harbour Master has no intention of seeing reason. To prevent this type of behaviour in other locations it may be that some “direct action” may be required to prevent other authorities acting in a manner which they are unaware is illegal and beyond they given powers

However, we have never heard of any incidents where hovercraft have damaged the environment, owners have been charged or prosecuted or operators refused the right to launch (other than good old Langstone Harbour of course!) But sometimes a little education is necessary. Given the increasing numbers of small hovercraft regularly used every weekend throughout the country this is a testament to the responsible behaviour and low noise levels of modern hovercraft. One of the things I love about hovercraft is that they aren’t well-known or understood by the many and I enjoy educating people who go on to become lifelong hovercraft enthusiasts. However, I will fight to the very end to protect our rights and as I said above it would be better if situations such as that in the US were avoided. We work towards the day when there is was an acceptance that hovercraft do not represent any type of a threat to the environment through which they travel.

In the meantime good luck John, stick it to ‘em on behalf of the little guy!